INTRACTABLE PROBLEMS AND MODEST SOLUTIONS: THE ILLICIT ANTIQUITIES TRADE BETWEEN THE UNITED STATES AND MEXICO.

Author:Dearman, Michael
 
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  1. INTRODUCTION II. BACKGROUND A. International Law 1. UNESCO Convention and the Adoption by the United States 2. Treaty of Cooperation Between the United States and Mexico (1970) B. Mexican Law C. Other United States Statutes 1. Pre-Columbian Antiquities Act of 1972 D. Case Law 1. Cases Applying the National Stolen Property Act a. United States v. Hollinshead b. United States v. McClain c. Government of Peru v. Johnson d. United States v. Schultz 2. Replevin Claims a. Autocephalous Greek Orthodox Church of Cyprus v. Goldberg b. Solomon R. Guggenheim Foundation v. Lubell III. ANALYSIS A. Current Knowledge of Trafficking Networks in the United States and Mexico B. Policy Goals 1. Mexico and Stolen Antiquities: Poverty, Trafficking, and Corruption a. Law Enforcement? b. Education? 2. The United States Market: Dealers and Museums a. Provenance b. The State of the Law IV. CONCLUSION I. INTRODUCTION

    On July 5, 2017, the United States filed a civil complaint against Hobby Lobby for the forfeiture of thousands of ancient artifacts illegally smuggled into the United States. (1) The artifacts originated in the Middle East, in modern-day Iraq, and were smuggled through several countries (namely, the United Arab Emirates and Israel) before ultimately arriving to the end-buyers in the United States. (2) These artifacts--consisting of cylinder seals, clay bullae, and cuneiform tablets and bricks--were shipped in packages labelled "tile samples." (3) The artifacts had highly suspicious provenance, and Hobby Lobby ignored the risk that the items had been looted from war-torn Iraq. (4) Ultimately, U.S. Customs and Border Protection seized the artifacts, and the Federal District Court in the Eastern District of New York found for the United States, resulting in a $3 million fine of Hobby Lobby and a requirement that the company submit reports on any additional cultural property acquisitions. (5)

    The Hobby Lobby incident is the latest iteration of an on-going crisis of cultural property theft, wherein antiquities are looted from source countries and transported through clandestine means to ultimately be sold to collectors and museums in wealthy market countries. (6) Close attention has been paid to destabilized regions in Iraq and Syria--both antiquities-rich and in the middle of civil wars--because of the persistent confluence of conflict and looting. (7)

    The United States was one of the first market countries to join in the international efforts to limit the illicit antiquities trade, even as other market countries, like Great Britain and Germany, resisted the international efforts of source countries. (8) The United States' attention to the serious issue began, not with the Middle East, but with the United States' southern neighbor, Mexico, in the 1970s. (9) With nearly half a century of efforts to inhibit the illicit antiquities trade between the U.S. and Mexico, not to mention several other Latin American countries, U.S.--Mexico policy needs an assessment as to whether current laws, regulations, and enforcement structures are working and how they might be altered to better serve shared policy goals. (10) Because only a fraction of Mexico's cultural antiquities is recovered, though, the current relationship likely needs legal and policy reworking. (11) This comment argues that the law focuses primarily on repatriation of antiquities and does not do enough to control demand by altering the way in which museums and collectors ultimately purchase antiquities.

    This comment first surveys the general problem that cultural property law poses for the law and its enforcement. It is written with close attention to United States law and policy, looking particularly at what the United States can do in order to help curb the illicit antiquities trade between the United States and Mexico. Section II covers the multi-layered, if somewhat disjointed, legal framework in the form of multilateral treaties and agreements, bilateral treaties and agreements between the United States and Mexico, Mexican law, and the United States statutes and case law. The goal is to weave a coherent thread through each of the distinct areas of law in order to discover holes within the current regulatory regime. Section III analyzes current developments in criminology, sociology and anthropology related to criminal trafficking networks of illicit antiquities and how those developments relate to the overarching policy goals that the United States and Mexico ought to pursue in order to dismantle them. Lastly, the comment examines current proposals to curb the trade, ranging from education, to market liberalization, to alterations of provenance analysis.

  2. BACKGROUND

    This section splits the law covering cultural property between international, bilateral, domestic statutory, and domestic case law. Section A treats the international legal aspects of the protection of cultural property to which the United States and Mexico are parties, paying particular attention to the UNESCO Convention on cultural property and the 1970 Treaty on cultural property between the United States and Mexico. Section B covers the development of Mexican law on cultural property, focusing on the 1972 law on cultural patrimony. Section C addresses the patchwork of U.S. statutes that apply to cultural property. Lastly, Section D delves into key cases that apply U.S. statutes and case law, illustrating ways in which Mexico can recover cultural property and the United States can inhibit the illegal antiquities trade. (12)

    1. International Law

      1. UNESCO Convention and the Adoption by the United

        States

        In 1960, the United Nations Educational, Scientific and Cultural Organization (UNESCO) determined that the illicit art and antiquities trade required direct address and began producing a report on the matter with the intent to develop a convention. (13) Eventually, a committee produced a draft of the convention in 1969, which "contained a number of very stringent obligations, including a commitment by art-importing countries to enforce other countries' export control laws ... no reservations to the convention would be permitted." (14) Market countries protested against these measures, resulting in a compromise draft, which became, on November 14, 1970, the Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property ("the Convention"). (15)

        Richard Nixon submitted the Convention to Senate for ratification, and the Senate ratified it in 1972, with one reservation and six understandings. (16) The understandings required that Congress implement portions of the Convention by legislation. Thus, the Convention did not come into effect in the United States until 1983 with the passage of the Cultural Property Implementation Act (CPIA). (17)

        In particular, Articles 7(b) and 9 of the Convention required implementation. (18) In short, Article 7(b) requires that a State Party must prohibit importation of cultural property stolen from a museum or monument of another State Party, and the State Party must take steps to recover it. (19) 7(b)(i) prohibits "[the importation] of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party ... provided that such property is documented as appertaining to the inventory of that institution." (20) The provision does not protect newly discovered archaeological sites. (21) Rather, it seems that the Convention contemplates the kinds of looting that occur in conflicts, such as in Iraq and Syria, where museums and monuments are ransacked, but it could also cover simple thefts from those places as well. (22) Article 7(b)(ii) requires a State Party to "take appropriate steps to recover and return any such cultural property [listed in 7(b)(i)]" at the request of a State Party. (23) These two provisions are presumably covered by the National Stolen Property Act (NSPA), which provides for the prosecution of individuals who knowingly transport or conspire to transport stolen property across state lines or national boundaries. (24)

        In reality, the CPIA really implements Article 9 of the Convention and accomplishes three objectives in doing so: (25)

        (1) The Executive is given the power to impose import restrictions on "[certain] categories of archaeological or ethnological material subject to pillage that jeopardizes the national cultural patrimony of a source country which is also a State Party to the [C]onvention." (26)

        (2) The import restrictions take the form of either "a multilateral accord with the source country and other market countries" or temporary emergency restrictions between the U.S. and the source country. (27)

        (3) Lastly, the CPIA creates the Cultural Property Advisory Committee (CPAC), which "makes recommendations on requests for protection received by the government from source countries who are also parties to the Convention." (28)

        Two concerns of art dealers motivated some of the mitigating factors of the CPIA: that the Executive Branch would have too much discretion to enter into bilateral and multilateral agreements to impose import restrictions and that other art-importing countries would take over the 'abandoned' supply as a result of those restrictions. (29) Hence, strenuous informational requirements are imposed on source countries to even garner the possibility of import restrictions. (30) Generally, those restrictions must be part of a broader multinational effort to restrict the importation of certain types of cultural property from the source country. (31)

        CPIA Overview (19 U.S.C. [section][section] 2601-2613) (32) Definitions 19 U.S.C. [section] 2601 Import Restrictions 19 U.S.C. Agreements with State Parties to impose [section] 2602 import restrictions 19 U.S.C. Emergency import restrictions [section] 2603 19 U.S.C. Designations of materials covered by the [section] 2604 restrictions 19 U.S.C. Creation of the Cultural Property...

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